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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRL.) NO. 85 OF 2012

IN

CRIMINAL APPEAL NO. 68 OF 2012

Nupur Talwar …. Petitioner

Versus

Central Bureau of Investigation & Anr. …. Respondents

O R D E R

1. The instant controversy emerges out of a double murder, committed on  

the  night  intervening 15-16.5.2008.   On having found the  body of  Aarushi  

Talwar in her bedroom in house no. L-32, Jalvayu Vihar, Sector 25, Noida, her  

father  Dr.  Rajesh  Talwar  got  a  first  information  report  registered  at  Police  

Station Sector  20,  Noida,  on 16.5.2008.   In the first  information report  Dr.  

Rajesh Talwar pointed the needle of suspicion at Hemraj, a domestic help in  

the household of the Talwars.  On 17.5.2008 the dead body of Hemraj was  

recovered from the terrace of the same house, i.e.,  house no.  L-32,  Jalvayu  

Vihar,  Sector  25,  Noida,  where  Aarushi’s  murder  had  also  allegedly  been  

committed.

2. The initial investigation into the double murder was carried out by the  

U.P.  Police.   On  29.5.2008  the  State  of  Uttar  Pradesh  handed  over  the

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investigation to the Central Bureau of Investigation (hereinafter referred to as,  

the CBI), thereupon investigation was conducted by the CBI.

3. During  the  course  of  investigation,  besides  Dr.  Rajesh  Talwar,  the  

needle of suspicion came to be pointed towards Krishna Thadarai, Rajkumar  

and Vijay Mandal.  Dr. Rajesh Talwar was arrested on 23.5.2008.  Originally a  

three days’  remand was granted to interrogate him to the U.P.  Police.   Dr.  

Rajesh  Talwar  remained  in  police  and  judicial  custody  from time  to  time,  

wherefrom, he was eventually released on bail on 11.7.2008.  The other three  

individuals, namely, Krishna Thadarai, Rajkumar and Vijay Mandal were also  

arrested by the police.  Since investigation against the aforesaid three could not  

be completed within the period of 90 days, they were ordered to be released on  

bail.

4. Having investigated into the matter for a considerable length of time, the  

CBI submitted a closure report on 29.12.2010.  The reasons depicted in the  

closure report indicated the absence of sufficient evidence to prove the alleged  

offences against the accused Dr. Rajesh Talwar, beyond reasonable doubt.  A  

summary of the reasons recorded in the said report itself, are being extracted  

hereunder:

“Despite  best  efforts  by  investigating  team,  some  of  the  major  shortcomings in the evidence are :-

i. No blood of Hemraj was found on the bed sheet and pillow of  Aarushi.  There is no evidence to prove that Hemraj was killed in  the room of Aarushi.

ii. Dragging mark on steps only indicate that murder has taken place  somewhere other than the terrace.

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iii. On the clothes of Dr. Rajesh Talwar, only the blood of Aarushi  was found but there was no trace of blood of Hemraj.

iv. The clothes that Dr. Nupur Talwar was wearing in the photograph  taken by Aarushi in the night of the incident were seized by CBI  but no blood was found during forensic examination.

v. Murder  weapons  were  not  recovered  immediately  after  the  offence.  One of the murder weapon i.e. sharp edged instrument  could not be recovered till  date and expert  could not find any  blood stain or DNA of victims from golf stick to directly link it to  the crime.

vi. There is no evidence to explain the finger prints on the scotch  bottle  (which  were  found along with  blood stains  of  both  the  victims on the  bottle).   As per  police  diary,  it  was  taken into  possession on 16th morning itself.   In spite of  best  efforts,  the  fingerprint(s) could not be identified.

vii. The  guards  of  the  colony  are  mobile  during  night  and  at  the  entrance they do not make any entry.  Therefore, their statements  regarding movement of persons may not be foolproof.  

viii. Scientific tests on Dr. Rajesh Talwar and Dr. Nupur Talwar have  not conclusively indicated their involvement in the crime.

ix. The exact sequence of events between (in the intervening night of  15-16/05/2008) 00.08 mid night to 6:00 AM in the morning is not  clear.  No evidence has emerged to show the clear role of Dr.  Rajesh  Talwar  and  Dr.  Nupur  Talwar,  individually,  in  the  commission of crime.

x. A board of experts constituted during earlier investigation team  has given an opinion that the possibility of the neck being cut by  khukri cannot be ruled out, although doctors who have conducted  postmortem have  said  that  cut  was  done  by surgically  trained  person with a small surgical instrument.

xi. There is no evidence to explain the presence of Hemraj’s mobile  in Punjab after murder.

xii. The offence has occurred in an enclosed flat hence no eye witness  are available.

xiii. The blood soaked clothes of the offenders, clothes used to clean  the  blood from the flat  and stair  case,  the  sheet  on which the  Hemraj was carried and dragged on the roof, the bed cover which  

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was used to cover the view from the steel iron grill on the roof  are not available and hence could not be recovered.

26. The  investigation  revealed  several  suspicious  actions  by  the  parents post occurrence, but the circumstantial evidence collected during  investigation has critical  and substantial gaps.  There is absence of a  clear cut motive and incomplete understanding of the sequence of events  and non-recovery of the weapon of offence and their link to either the  servants or the parents.

In view of the aforesaid shortcomings in the evidence, it is felt  that  sufficient  evidence  is  not  available  to  prove  the  offence(s)  U/s  302/201  IPC  against  accused  Dr.  Rajesh  Talwar  beyond  reasonable  doubt.  It is, therefore, prayed that the case may be allowed to be closed  due to insufficient evidence.”     

5. On the receipt of the closure report submitted by the CBI, the Special  

Judicial  Magistrate  (CBI),  Ghaziabad  (hereinafter  referred  to  as  “the  

Magistrate”) issued notice to the Dr. Rajesh Talwar in his capacity as the first  

informant.   In  response  to  the  notice  received  by  Dr.  Rajesh  Talwar,  he  

submitted a detailed protest petition dated 25.1.2011, wherein, he objected to  

the closure report (submitted by the CBI).  In the protest petition he prayed for  

further investigation, to unravel the identity of those responsible for the twin  

murders of Aarushi Talwar and Hemraj.

6. On 9.2.2011, the Magistrate rejected the closure report submitted by the  

CBI.  The Magistrate also rejected, the prayer made in the protest petition for  

further investigation (by Dr. Rajesh Talwar).  Instead, having taken cognizance,  

the Magistrate summoned Dr. Rajesh Talwar (father of Aarushi Talwar) and his  

wife Dr. Nupur Talwar (mother of Aarushi Talwar) for committing the murders  

of Aarushi Talwar and Hemraj, as also, for tampering with the evidence.

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7. The aforestated summoning order dated 9.2.2011, was assailed by Dr.  

Nupur Talwar by filing a revision petition before the High Court of judicature  

at Allahabad (Criminal Revision Petition no. 1127 of 2011).  The aforesaid  

Criminal Revision Petition came to be dismissed by the High Court vide an  

order dated 18.3.2011.  Dissatisfied with the order passed by the High Court  

dated 18.3.2011,  Dr.  Nupur Talwar approached this  Court  by filing Special  

Leave Petition (Criminal) no. 2982 of 2011 (renumbered as Criminal Appeal  

no. 16 of 2011).  The aforesaid Criminal Appeal was dismissed by this Court  

by an order dated 6.1.2012.  Through the instant review petition, the petitioner  

Dr. Nupur Talwar has expressed the desire, that this Court reviews its order  

dated  6.1.2012  (dismissing  Criminal  Appeal  no.  16  of  2011).   The  instant  

Review Petition  was entertained,  and notice  was issued to  the  respondents.  

Lengthy  arguments  were  advanced  at  the  hands  of  the  learned  counsel  

representing the review petitioner.  Learned counsel representing the CBI also  

went to great lengths, to repudiate the same.  It emerged from the submissions  

advanced at the hands of the rival parties, that the focus of attack was against  

the order passed by the Magistrate dated 9.2.2011.

8. The order passed by the Magistrate on 9.2.2011 was startlingly criticized  

for being unnecessarily exhaustive.  The Magistrate was accused of discussing  

the evidence in minute detail, and thereby, for having evaluated the merits of  

the controversy, well before the beginning of the trial.   It  was sought to be  

canvassed, that even if the Magistrate having taken cognizance, was satisfied  

that  process deserved to be issued,  he ought not have examined the factual  

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intricacies  of  the  controversy.   The  Magistrate,  it  was  submitted,  has  the  

authority only to commit the controversy in hand, to a Court of Session, as the  

alleged offences emerging out of the first information report dated 16.5.2008,  

and the discovery of the murder of Hemraj thereafter,  are triable only by a  

Court of Session.  It was submitted, that the controversy had been examined as  

if, the Magistrate was conducting the trial.  It was asserted, that a perusal of the  

order  passed by the  Magistrate  dated 9.2.2011,  gives  the  impression  of  the  

passing  of  a  final  order,  on  the  culmination  of  trial.   It  was,  therefore,  

submitted,  that  the  order  dated 9.2.2011 be  set  aside,  as  all  the  inferences,  

assumptions and conclusions recorded therein, were totally uncalled for.   

9. Undoubtedly, merely for taking cognizance and/or for issuing process,  

reasons may not be recorded.  In Kanti Bhadra Shah vs. State of West Bengal,  

(2000) 1 SCC 722, this Court having examined sections 227, 239 and 245 of  

the Code of Criminal Procedure, concluded, that the provisions of the Code  

mandate,  that  at  the  time of  passing an order  of  discharge in  favour of  an  

accused, the provisions referred to above necessitate reasons to be recorded.  It  

was, however, noticed, that there was no such prescribed mandate to record  

reasons, at the time of framing charges against an accused.  In U.P. Pollution  

Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745, the  

issue whether it was necessary for the trial court to record reasons while issuing  

process came to be examined again, and this Court held as under:-

“2. Though the trial court issued process against the accused  at the first instance, they desired the trial court to discharge  them without even making their first appearance in the  court. When the attempt made for that purpose failed they  

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moved for exemption from appearance in the court.  In     the    meanwhile     the     Sessions     Judge,     Lucknow     (Shri     Prahlad    Narain)     entertained     a     revision     moved     by     the     accused    against     the     order     issuing     process     to     them     and,     quashed     it    on     the     erroneous     ground     that     the     magistrate     did     not     pass     "a    speaking     order"     for     issuing     such     summons  .

3. The Chief Judicial Magistrate, (before whom the complaint  was filed) thereafter passed a detailed order on 25.4.1984  and again issued process to the accused. That order was  again challenged by the accused in revision before the  Sessions Court and the same Sessions Judge (Shri  Prahlad Narain) again quashed it by order dated 25.6.1984.

5. We may point out at the very outset that the Sessions Judge was  in error for quashing the process at the first round merely on the  ground  that  the  Chief  Judicial  Magistrate  had  not  passed  a  speaking  order.  In  fact  it  was  contended  before  the  Sessions  judge, on behalf of the Board, that there is no legal requirement  in Section 204 of the Code of Criminal Procedure (For short the  'Code')  to  record  reasons  for  issuing  process.  But  the  said  contention was spurned down in the following words:

My attention has been drawn to Section 204 of the Code of  Criminal Procedure and it has been argued that no reasons  for summoning an accused person need be given.  I feel  that under Section 204 aforesaid, a Magistrate has to form  an opinion that there was sufficient ground for proceeding  and, if  an opinion had to be formed judicially,  the only  mode of doing so is to find out express reasons for coming  to  the  conclusions.  In  the  impugned  order,  the  learned  Magistrate  has  neither  specified any reasons nor has  he  even  formed  an  opinion  much  less  about  there  being  sufficient ground for not proceeding with the case.

6. In a recent decision of the Supreme Court it has been pointed out  that  the  legislature  has  stressed  the  need  to  record  reasons  in  certain situations such as dismissal of a complaint without issuing  process.  There  is  no  such  legal  requirement  imposed  on  a  Magistrate for passing detailed order while issuing summons vide  Kanti  Bhadra Shah v.  State of  W.B.,  (2000)  1  SCC 722.  The  following passage will be apposite in this context:

“12. If there is no legal requirement that the trial court  should write an order showing the reasons for framing a  charge,  why should the already burdened trial courts  be  further burdened with such an extra work. The time has  reached  to  adopt  all  possible  measures  to  expedite  the  court  procedures and to  chalk out measures  to  avert  all  

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(e) discharges  a  person  lawfully  bound  to  be  of  good  behaviour;

(f) cancels a bond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance  

of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub-

section (1) of section 190; (l) tries an offender; (m) tries an offender summarily; (n) passes  a  sentence,  under  section  325,  on  proceedings  

recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446,

his proceedings shall be void.”

In the list of irregularities indicated in Section 461 of the Code of Criminal  

Procedure, orders passed under Section 204 thereof, do not find a mention.  In  

a  situation,  as  the  one  in  hand,  Section  465(1)  of  the  Code  of  Criminal  

Procedure,  protects  orders  from errors  omissions  or  irregularities,  unless  “a  

failure  of  justice”  has  been  occasioned  thereby.   Most  certainly,  an  order  

delineating  reasons  cannot  be  faulted  on  the  ground that  it  has  occasioned  

failure of justice.  Therefore, even without examining the matter any further, it  

would  have  been  sufficient  to  conclude  the  issue.   The  present  situation,  

however, requires a little further elaboration.  Keeping in mind the peculiarity  

of the present matter and the special circumstances arising in this case, some  

observations need to be recorded.  Accordingly, to determine whether reasons  

ought to have been recorded by the Magistrate, in this case, is being dealt with  

in the succeeding paragraphs.

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11. On the basis of the foundational facts already recorded above, I shall  

examine the merits of the first submission advanced before the Court.  First and  

foremost  it  needs  to  be  remembered,  that  the  CBI had submitted a  closure  

report  on  29.12.2010.   The  Magistrate  could  have  accepted  the  report  and  

dropped proceedings.  The Magistrate, however, chose not to accept the CBI’s  

prayer for closure.  Alternatively, the Magistrate could have disagreed with the  

report, by taking a view (as she has done in the present case) that there were  

sufficient  grounds  for  proceeding  further,  and  thereby,  having  taken  

cognizance,  could  have  issued  process  (as  has  been  done  vide  order  dated  

9.2.2011).   A  third  alternative  was  also  available  to  the  Magistrate.   The  

Magistrate could have directed the police to carry out further investigation.  As  

noticed  hereinabove,  the  Magistrate  inspite  of  the  submission  of  a  closure  

report, indicating the absence of sufficient evidence, having taken cognizance,  

chose  to  issue  process,  and  thereby,  declined  the  third  alternative  as  well.  

Since the CBI wanted the matter to be closed, it was appropriate though not  

imperative for the Magistrate to record reasons, for differing with the prayer  

made in the closure report.  After all, the CBI would have surely wished to  

know, how it went wrong.  But then, there are two other important factors in  

this  case,  which  further  necessitated  the  recording  of  reasons.   Firstly,  the  

complainant himself (Dr.  Rajesh Talwar, who authored the first  information  

report dated 16.5.2008) was being summoned as an accused.  Such an action  

suggests, that the complainant was really the accused.  The action taken by the  

Magistrate, actually reversed the position of the adversaries.  The party which  

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was originally pointing the finger, is now sought to be pointed at.  Certainly,  

the complainant would want to know why.  Secondly, the complainant (Dr.  

Rajesh  Talwar)  had  filed  a  protest  petition  dated  25.1.2011,  praying  for  a  

direction to the police to carry out further investigation.  This implies that the  

CBI had not been able to procure sufficient evidence on the basis whereof, guilt  

of the perpetrators of the twin murders of Aarushi Talwar and Hemraj could be  

established.  Whilst, the rival parties were pleading insufficient evidence, the  

Magistrate’s order dated 9.2.2011 issuing process, implies the availability of  

sufficient material to proceed against the accused.  This second aspect in the  

present controversy, also needed to be explained, lest the Magistrate who had  

chosen to issue process against all odds, would have been blamed of having  

taken the decision whimsically and/or arbitrarily.  Before rejecting the prayer  

made in the closure report, as also, the prayer made in the protest petition, it  

was appropriate though not imperative for the Magistrate to narrate, why she  

had taken a decision different from the one sought.  Besides the aforesaid, there  

is yet another far more significant reason for recording reasons in the present  

matter.   The  incident  involving  the  twin  murders  of  Aarushi  Talwar  and  

Hemraj are triable by a Court of Session.  The authority of the Magistrate was  

limited  to  taking  cognizance  and  issuing  process.   A  Magistrate  in  such  a  

situation, on being satisfied, has the authority to merely commit the case for  

trial  to  a  Court  of  Session,  under  Section  209  of  the  Code  of  Criminal  

Procedure.  Section 209 is being extracted hereunder:

“Commitment  of  case  to  Court  of  Session  when offence  is  triable exclusively by it – When in a case instituted on a police  

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report or otherwise, the accused appears or is brought before the  Magistrate  and it  appears  to the  Magistrate  that  the offence is  triable exclusively by the Court of Session, he shall – (a) commit,  after  complying  with  the  provisions  of  section  

207 or section 208, as the case may be, the case to the  Court  of  Session,  and  subject  to  the  provisions  of  this  Code relating to bail, remand the accused to custody until  such commitment has been made;

(b) subject  to  the  provisions  of  this  Code  relating  to  bail,  remand  the  accused  to  custody  during,  and  until  the  conclusion of, the trial;

(c) send  to  that  Court  the  record  of  the  case  and  the  documents and articles, if any, which are to be produced in  evidence;

(d) notify the Public Prosecutor of the commitment of the case  to the Court of Session.”   

In  this  background,  it  was  essential  for  the  Magistrate  to  highlight,  for  the  

perusal of the Court of Session, reasons which had weighed with her, in not  

accepting the closure report submitted by the CBI, as also, for not acceding to  

the prayer made in the protest petition, for further investigation.  It was also  

necessary to narrate what prompted the Magistrate to summon the complainant  

as an accused.  For, it is not necessary that the Court of Session would have  

viewed the matter from the same perspective as the Magistrate.  Obviously, the  

Court  of Session would in the first  instance,  discharge the responsibility  of  

determining  whether  charges  have  to  be  framed  or  not.   Merely  because  

reasons have been recorded, the Court of Session will have an opportunity to  

view the matter, in the manner of understanding of the Magistrate.  If reasons  

had not been recorded, the Court of Session may have overlooked, what had  

been evaluated, ascertained and comprehended by the Magistrate.  Of course, a  

Court  of  Session,  on  being  seized  of  a  matter  after  committal,  being  the  

competent court, as also, a court superior to the Magistrate, has to examine all   

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issues independently, within the four corners of law, without being influenced  

by the reasons recorded in the order  issuing process.   In  the circumstances  

mentioned  hereinabove,  it  was  befitting  for  the  Magistrate  to  pass  a  well  

reasoned order, explaining why she was taking a view different from the one  

prayed for in the closure report.  It is also expedient for the Magistrate to record  

reasons why the request made by the complainant (Dr. Rajesh Talwar) praying  

for  further  investigation,  was  being  declined.   Even  the  fact,  that  the  

complainant  (Dr.  Rajesh  Talwar)  was  being  summoned  as  an  accused,  

necessitated recording of reasons.  An order passed in the circumstances noted  

hereinabove, without outlining the basis therefor, would have been injudicious.  

Certainly the Magistrate’s  painstaking effort  needs a special  commendation.  

At this juncture, it would be apposite to notice the observations recorded by  

this Court in Rupan Deol Bajaj and another vs. KPS Gill and another, (1995) 6  

SCC 194, wherein this Court remarked as under:-

“28. Since     at     the     time     of     taking     cognizance     the     Court     has     to    exercise     its     judicial     discretion     it     necessarily     follows     that     if     in    a     given     case     -     as     the     present     one     -     the     complainant,     as     the    person     aggrieved     raises     objections     to     the     acceptance     of     a    police     report     which     recommends     discharge     of     the     accused    and     seeks     to     satisfy     the     Court     that     a     case     for     taking    cognizance     was     made     out,     but     the     Court     overrules     such    objections,     it     is     just     and     desirable     that     the     reasons    therefore     be     recorded.     Necessity     to     give     reasons     which    disclose     proper     appreciation     of     the     issues     before     the     Court    needs     no     emphasis.     Reasons     introduce     clarity     and    minimize     chances     of     arbitrariness  . That necessarily means  that recording of reasons will not be necessary when the  Court accepts such police report without any demur from  the complainant. As     the     order     of     the     learned     Magistrate     in    the     instant     case     does     not     contain     any     reason     whatsoever,    even     though     it     was     passed     after     hearing     the     objections     of    the     complainant,     it     has     got     to     be     set     aside     and     we     do    

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decide upon their truthfulness, falsity or reliability, after  those statements are translated into evidence during trial.  For the selfsame reasons we do not wish to refer to the  arguments canvassed by Mr. Sanghi, in support of the  opinion expressed in the police (final) report and our  reasons in disagreement thereto.”

(emphasis is mine)

Therefore,  even  though  the  Magistrate  was  not  obliged  to  record  reasons,  

having passed a speaking order while issuing process, the Magistrate adopted  

the  more  reasonable  course,  though  the  same  was  more  ponderous,  

cumbersome and time consuming.

12. Therefore,  in  the  present  set  of  circumstances,  the  Magistrate  having  

examined  the  statements  recorded  during  the  course  of  investigation  under  

Sections  161  and  164  of  the  Code  of  Criminal  Procedure,  as  also,  the  

documents and other materials collected during the process of investigation,  

was fully justified in recording the basis on which, having taken cognizance, it  

was decided to issue process.  I, therefore, hereby find absolutely no merit in  

the  criticism of  the  Magistrate’s  order,  in  being  lengthy  and  detailed.   In  

passing  the  order  dated  9.2.2011  the  Magistrate  merely  highlighted  the  

circumstances  emerging  out  of  the  investigation  carried  out  in  the  matter,  

which constituted the basis of her decision to issue process.  The Magistrate’s  

order being speaking, cannot be stated to have occasioned failure of justice.  

The order of the Magistrate, therefore, cannot be faulted on the ground that it  

was a reasoned order.

13. During the course of hearing, the primary ground for assailing the order  

of the Magistrate dated 9.2.2011 was focused on projecting, that the Magistrate  

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had not only drawn incorrect conclusions, but had also overlooked certain vital  

factual  aspects  of  the  matter.   Before  examining  the  details  on  the  basis  

whereof the order passed by the Magistrate (dated 9.2.2011) can be assailed, it   

will  be  necessary  to  first  summarize  the  basis  whereon  the  Magistrate  

perceived, that there was sufficient material for proceeding against the accused  

in the present controversy.  Different aspects taken into consideration by the  

Magistrate are accordingly being summarized hereunder:

Firstly, based on the statements of Umesh Sharma and Bharti recorded during  

the course of investigation, coupled with the factual position depicted in the  

first information report, it was sought to be inferred, that on the night of the  

incident Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwar and Hemraj  

only  were  present  at  the  place  of  the  occurrence,  namely,  house  no.  L-32  

Jalvayu  Vihar,  Sector  25,  Noida.   Being  last  seen  together,  the  needle  of  

suspicion would point  at  the two surviving persons, specially if it  could be  

established, that the premises had not been broken into.

Secondly, on the basis of the statement of Mahesh Kumar Mishra, recorded  

during the course of investigation, who alleged that he was told by Dr. Rajesh  

Talwar, that he had seen his daughter Aarushi Talwar on the fateful night upto  

11:30 p.m., whereafter, he had locked the room of his daughter from outside,  

and had kept the key near his bed head.  Coupled with the fact, that the lock on  

Aarushi  Talwar’s  room was  of  a  kind  which  could  be  opened from inside  

without  a  key but,  needed a  key to  be  opened from outside.   And further,  

coupled with the fact, that the outer exit/entry door(s) to the flat of the Talwars,  

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had not been broken into.  It was assumed, that there was no outside forced  

entry, either into the bedroom of Aarushi Talwar or the flat of the Talwars, on  

the night of the twin murders of Aarushi Talwar and Hemraj.   

Thirdly, the Magistrate noticed from the investigation carried out, that the dead  

body of Hemraj was covered with a panel of a cooler, and on the grill a bed  

sheet had been placed.  Likewise, from the fact that Aarushi Talwar’s body was  

found murdered on her own bed, yet her toys were found arranged “as such”  

behind the bed and also, there were no wrinkles on the bed sheet.   On the  

pillow kept behind Aarushi Talwar, there ought to have been blood stains when  

she was attacked (as she was hit on her head, and her neck had been slit), but  

the  same  were  absent.   These  facts  were  highlighted  by  the  Magistrate  to  

demonstrate the dressing up of the place(s) of occurrence, to further support the  

assumption of the involvement of an insider, as against, an outsider.

Fourthly,  based  on  the  statements  of  Virendera  Singh,  Sanjay  Singh,  Raj  

Kumar,  Chandra  Bhushan,  Devender  Singh,  Ram  Vishal  and  Punish  Rai  

Tandon,  recorded  during  the  course  of  investigation,  it  was  sought  to  be  

assumed, that no outsider was seen either entering or leaving house no. L-32,  

Jalvayu Vihar, Sector 25, Noida, on the night intervening 15-16.5.2008.  This  

also, according to the Magistrate, affirmed the main deduction, that no outsider  

was involved.

Fifthly, based on the statements of Dr. Anita Durrani, Punish Rai Tandon and  

K.N. Johri,  recorded during the course of investigation, it  was sought to be  

inferred, that the other servants connected with the household of the Talwar  

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family, namely, Raj Kumar, Vijay Mandal and Krishna Thadarai, were present  

elsewhere at the time of the commission of the twin murders, and also that,  

there was no material depicting their prima facie involvement or motive in the  

crime, specially because, no “… precious things like jewellery or any other  

thing from the house of Talwars couple …” was found missing and further that  

“… no rape on Aarushi Talwar had been confirmed …”.  Accordingly, it was  

sought to be reasoned, that no outsider had entered the premises.

Sixthly, from the statements of Deepak Kanda, Bhupender Singh and Rajesh  

Kumar, recorded during the course of investigation, it was felt that on the night  

when the murder was committed, i.e. the night intervening 15-16.5.2008 the  

internet connection was regularly used by Dr. Rajesh Talwar from 11:00 p.m.  

to  12:08 a.m.   In  fact,  both Dr.  Rajesh Talwar,  as  also,  Dr.  Nupur  Talwar  

themselves confirmed to the witnesses whose statements were recorded during  

the course of investigation, that the internet router was switched on at 11:00  

p.m. and Dr. Rajesh Talwar had thereafter used the internet facility.  Based on  

this factual position it was gathered, that both Dr. Rajesh Talwar and Dr. Nupur  

Talwar were awake and active at or around the time of occurrence (determined  

in the post-mortem report).   

Seventhly,  from  the  statements  of  Sunil  Kumar  Dorhe,  Naresh  Raj,  Ajay  

Kumar and Dinesh Kumar recorded during the course of investigation, it was  

sought to be inferred, that the private parts of the deceased Aarushi Talwar  

were tampered with, inasmuch as, the white discharge was found only in the  

vaginal area of Aarushi Talwar indicating, that her private parts were cleaned  

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after her death.  The said white discharge was found not to be originating from  

the body of the deceased.  The aforesaid inference was sought to be further  

supported by assertions, that the vaginal opening of Aarushi Talwar, at the time  

of  the  post  mortem  examination,  was  unusually  wide.   Accordingly,  a  

deduction was made, that evidence had been tampered with, by those inside the  

flat, after the occurrence.

Eighthly, it was also sought to be assumed, that the death of Aarushi Talwar  

and Hemraj was occasioned as a consequence of injuries caused by an iron 5  

golf club (on the head of both the deceased), as also,  “… injury on the neck of  

both the deceased … caused by a surgically trained person …”.  Since the golf  

club  in  question  was  not  immediately  produced,  and  since,  the  accused  

themselves were surgically trained, it was gathered that Dr. Rajesh Talwar and  

Dr. Nupur Talwar were themselves responsible for the twin murders.   

Ninthly, in paragraph 15 of the Magistrate’s order dated 9.2.2011 it is noticed,  

that a request was made to Dr. Sunil Kumar Dhore for not mentioning the word  

“rape” in the post mortem proceedings.  Investigation also established, that Dr.  

Dinesh Talwar (brother of Dr. Rajesh Talwar), had spoken to Dr. Sunil Kumar  

Dhore and exerted influence over Dr. Sunil Kumar Dhore through Dr. Dogra  

who allegedly instructed Dr. Sunil Kumar Dhore in connection with the post  

mortem examination.  On the basis of the aforesaid material highlighted in the  

order dated 9.2.2011, the Magistrate further expressed the view, that influence  

was allegedly being exerted on behalf of the accused, on the doctor who was  

conducting the post mortem examination.    

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Tenthly, based on the statements of Umesh Sharma, Kalpana Mondal, Vimla  

Sarkar and Punish Tandon, recorded during the course of investigation, it was  

sought to be concluded, that the door leading to the terrace of house no.L-32,  

Jalvayu Vihar, Sector 25, Noida, had always remained open prior to the date of  

occurrence.  It was gathered therefrom, that the lock on the door leading to the  

terrace of the house in question on the date of occurrence, was affixed so that  

the investigating agency would not immediately recover the body of Hemraj, so  

as to hamper the investigation.  These facts allegedly spell out the negative role  

played  by  Dr.  Rajesh  Talwar  in  causing  hindrances  in  the  process  of  

investigation.

Eleventhly,  based  on  the  statements  of  Rohit  Kocchar  and  Dr.  Rajeev  

Varshney,  recorded  under  Section  164  of  the  Code  of  Criminal  Procedure,  

disclosing, that they had informed Dr. Rajesh Talwar, that the terrace door, the  

lock on the terrace door,  as also, the upper steps of the staircase had blood  

stains. They also asserted, that Dr. Rajesh Talwar “… climbed up some steps  

but immediately came down and did not say anything about keys and went  

inside the house …”.  The aforesaid narration, coupled with the fact, that Dr.  

Prafull Durrani one of the friends of Dr. Rajesh Talwar stated, that he was “…  

told by Dr. Rajesh Talwar, that the key of the terrace used to be with Hemraj.  

He did not know about the key …” was the basis for assuming, that Dr. Rajesh  

Talwar  was  preventing  the  investigating  agency  from  tracing  the  body  of  

Hemraj, which was eventually found from the terrace, after breaking open the  

lock on the terrace door.

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Twelfthly, Umesh Sharma the driver of the Talwars, stated during the course of  

investigation, that he had placed two golf clubs, i.e. irons 4 and 5 in the room  

of Hemraj, when the Santro car owned by the Talwars, was given for servicing.  

The iron 5 club, which is alleged to be the weapon of crime (which resulted in  

a V shaped injury on the heads of both Aarushi Talwar and Hemraj), remained  

untraced during the course of active investigation.  The same was recovered  

from  the  loft  of  the  house  of  Dr.  Rajesh  Talwar,  and  handed  over  to  the  

investigating agency, more than a year after the occurrence on 30.10.2009.  The  

Magistrate noticed, that the loft from where it was allegedly found, had been  

checked several times by the CBI.   To which the explanation of Dr. Rajesh  

Talwar allegedly was, that one golf club might have dropped from the golf kit,   

and might have been left there.  This factual aspect lead to the inference, that  

the  weapon  used  in  the  crime,  was  deliberately  not  handed  over  to  the  

investigating agency, after the occurrence.

Thirteenthly, another factual aspect emerging during the course of investigation  

was, that the body of Hemraj was recovered on the day following the murder of  

Aarushi Talwar, i.e., on 17.5.2008.  When Dr. Rajesh Talwar was shown the  

body, he could not identify it as that of Hemraj.  The dead body was identified  

by  one  of  Hemraj’s  friend.   Dr.  Nupur  Talwar  confirmed,  that  the  body  

recovered from the terrace was of Hemraj, on the basis of the inscription on the  

shirt  worn by him.  From the fact  that,  neither Dr.   Rajesh Talwar nor Dr.  

Nupur Talwar could identify the body of Hemraj, from its appearance, it was  

sought to be figured, that they were not cooperating with the investigation.

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Besides the aforesaid conspicuous facts depicted in the order passed by the  

Magistrate, a large number of other similarly significant facts, have also been  

recorded,  in  the  order  dated  9.2.2011.   The  same are  not  being  mentioned  

herein,  as  the  expressive  and  weighty  ones,  essential  to  arrive  at  a  

determination  on  the  issue  in  hand,  have  already  been  summarized  above.  

Based  inter  alia  on  the  inferences  and  the  assumptions  noticed  above,  the  

Magistrate issued process by summoning Dr. Rajesh Talwar and Dr.  Nupur  

Talwar.

14. The facts noticed in the foregoing paragraph and the impressions drawn  

thereupon by the Magistrate, are based on statements recorded under Section  

161 of Code of Criminal Procedure (and in a few cases, under Section 164 of  

the Code of Criminal Procedure), as also, on documents and other materials  

collected during the course of investigation. Neither the aforesaid statements,  

nor the documents and materials taken into consideration, can at the present  

juncture be treated as reliable evidence which can be taken into consideration,  

for finally adjudicating upon the guilt or innocence of the accused.  It is only  

when the witnesses appear in court, and make their statements on oath, and  

their statements have been tested by way of cross examination; and only after  

the documents and other materials relied upon are proved in accordance with  

law, the same would constitute evidence which can be relied upon to determine  

the  controversy.   It  is  on  the  basis  of  such acceptable  evidence,  that  final  

conclusions can be drawn to implicate the accused.   That stage has not yet  

arisen.  At the present juncture, the Magistrate was required to examine the  

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materials collected by the investigating agencies, and thereupon, to determine  

whether  the  proceedings  should  be  dropped  (as  was  suggested  by  the  

investigating agency, through its closure report dated 29.12.2010), or whether,  

a direction should be issued for further investigation (as was suggested in the  

protest petition filed by Dr. Rajesh Talwar), or whether, there was sufficient  

ground for  proceeding further,  by issuing process  (as has been done in  the  

present case).   Having examined the material  on the  record,  the  Magistrate  

having  taken  cognizance  issued  process  on  9.2.2011,  and  while  doing  so,  

recorded  the  following  observations  in  the  penultimate  paragraphs  of  

summoning order dated 9.2.2011:  

“From the analysis of evidence of all above mentioned witnesses  prima  facie  it  appears  that  after  investigation,  on  the  basis  of  evidence available in the case diary when this incident occurred  at that time four members were present in the house – Dr. Rajesh  Talwar,  Dr.  Nupur  Talwar,  Aarushi  and  servant  Hem  Raj;  Aarushi and Hem Raj the two out four were found dead.  In the  case diary there is no such evidence from which it may appear  that some person had made forcible entry and there is to evidence  regarding  involvement  of  the  servants.   In  the  night  of  the  incident internet was switched on and off in the house in regard  to which this evidence is available in the case diary that it was  switched on or off by some person.  Private parts of deceased  Aarushi  were  cleaned  and deceased Hem Raj  was  dragged in  injured condition from the flat of Dr. Rajesh Talwar up to the  terrace and the terrace was locked.  Prior to 15.5.2008 terrace was  not locked.  According to documents available on the case diary  blood stains were wiped off on the staircase, both the deceased  were  slit  with  the  help  of  a  surgical  instrument  by  surgically  trained persons and shape of injury on the head and forehead was  V-shaped  and  according  to  the  evidence  available  in  the  case  diary that appeared to have been caused with a gold stick.  A  person  coming  from  outside,  during  the  presence  of  Talwar  couple in the house could have neither used the internet nor could  have taken the dead body of deceased Hem Raj to the terrace and  then locked when the Talwar couple was present in the house.  On the basis of evidence available in the case diary footprints  

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stained with blood were found in the room of Aarushi but outside  that room bloodstained footprints were not found.  If the assailant  would  go  out  after  committing  murder  then  certainly  his  footprints would not be confined up to the room of Aarushi and  for an outsider it is not possible that when Talwar couple were  present in the house he would use liquor or would try to take dead  body on the terrace.  Accused after committing the offence would  like to run away immediately so that no one could catch him.

On  the  basis  of  evidence  of  all  the  above  witnesses  and  circumstantial  evidence  available  in  case  diary  during  investigation  it  was  expected  from the  investigating  officer  to  submit  charge-sheet  against  Dr.  Rajesh Talwar and Dr.  Nupur  Talwar.  In such type of cases when offence is committed inside a  house,  there  direct  evidence  cannot  be  expected.   Here  it  is  pertinent to mention that CBI is the highest investigating agency  of  the  country  in  which  the  public  of  the  country  has  full  confidence.  Whenever in a case if any one of the investigating  agencies of the country remained unsuccessful then that case is  referred  to  CBI  for  investigation.   In  such circumstances  it  is  expected  of  CBI  that  applying  the  highest  standards,  after  investigation  it  should  submit  such  a  report  before  the  court  which is just and reasonable on the basis of evidence collected in  investigation, but it was not done so by the CBI which is highly  disappointing.  If I draw a conclusion from the circumstances of  case diary, then I find that in view of the facts, the conclusion of  the investigating officer that on account of lack of evidence, case  may be closed; does not appear to  be just  and proper.   When  offence was committed in side a house, on the basis of evidence  received  from  case  diary,  a  link  is  made  from  these  circumstances,  and  these  links  are  indicating  prima  facie  the  accused Dr. Rajesh Talwar and Dr. Nupur Talwar  to be guilty.  The evidence of witness Shoharat that Dr. Rajesh Talwar asked  him to paint the wooden portion of a wall between the rooms of  Aarushi and Dr. Rajesh Talwar, indicates towards the conclusion  that he wants to temper with the evidence.  From the evidence 3  so many in the case diary, prima facie evidence is found in this  regard.  Therefore in the light of above evidences conclusion of  investigating  officer  given  in  the  final  report  deserve  to  be  rejected  and  there  is  sufficient  basis  for  taking  prima  facie  cognizance against Dr. Rajesh Talwar and Dr. Nupur Talwar for  committing murder of deceased Aarushi and Hem Raj and for  tempering with the proof.  At this stage, the principle of law laid  down by Hon’ble Supreme Court in the case of Jugdish Ram vs.  State of Rajasthan reported in 2004 AIR 1734 is very important  wherein the Hon’ble Supreme Court held that investigation is the  

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job of Police and taking of cognizance is within the jurisdiction  of  the  Magistrate.   If  on the  record,  this  much of  evidence is  available  that  prima  facie  cognizance  can  be  taken  then  the  Magistrate  should  take  cognizance,  Magistrate  should  be  convinced  that  there  is  enough  basis  for  further  proceedings  rather for sufficient basis for proving the guilt.”            

15. In order to canvass the primary ground raised for assailing the order of  

the Magistrate dated 9.2.2011, it was submitted, that the Magistrate would have  

arrived  at  a  conclusion,  different  from  the  one  drawn  in  the  order  dated  

9.2.2011, if the matter had been examined in its correct perspective, by taking a  

holistic view of the statements and materials recorded during investigation. It is  

sought to be canvassed, that a perusal of the impugned order reveals, that too  

much emphasis was placed on certain incorrect facts, and further, certain vital  

and relevant facts and materials were overlooked.  In sum and substance it was  

submitted,  that  if  the  factual  infirmities  were  corrected,  and  the  facts  

overlooked were given due weightage, the conclusions drawn by the Magistrate  

in the order dated 9.2.2011, would be liable to be reversed. To appreciate the  

instant  contention  advanced  at  the  hands  of  the  learned  counsel  for  the  

petitioners, I am summarizing hereunder, the factual aspects highlighted by the  

learned counsel for the petitioner during the course of hearing:-

Firstly,  it  was submitted,  that  the  inference drawn by the  Magistrate  to  the  

effect,  that  there  was no outsider  other  than Dr.  Rajesh Talwar,  Dr.  Nupur  

Talwar, Aarushi Talwar and Hemraj in house no.L-32, Jalvayu Vihar, Sector  

25,  Noida,  on the  fateful  day,  is  erroneous.  It  was  submitted,  that  the  said  

inference was drawn under the belief, that there was no forceful entry into the  

premises in question.  To canvass the point, learned counsel drew the attention  

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of  this  Court to  the  site  plan  of  the  flat  under  reference,  which  had  been  

prepared by the U.P. Police (during the course of investigation by the U.P.  

Police), and compared the same with, the site plan prepared by the CBI (after  

the CBI took over investigation).  It was pointed out, that a reference to the  

correct site plan would reveal, that there could have been free access, to and  

from the residence of Talwars, through Hemraj’s room.  

Secondly, it was pointed out, after extensively relying upon the statement of  

Bharti, that the grill and mash door latched from the outside clearly evidenced,  

that  after  committing  the  crime  the  culprits  had  bolted  the  premises  from  

outside.  The  absurdity  in  the  inference  drawn  by  the  Magistrate,  it  was  

submitted, was obvious from the fact, that the actual perpetrator of the murders,  

while  escaping from the scene of  occurrence,  had bolted  the  Talwars  from  

outside. It was also pointed out, that the iron mashing/gauze on the door which  

was bolted from outside, would make it impossible for an insider, to bolt the  

door from outside.

Thirdly,  according  to  the  learned  counsel,  the  impression  recorded  in  the  

investigation carried out by the CBI reveals, that the stairway leading to the  

terrace was from inside the flat (of the Talwars), was erroneous.  This inference  

was sought to be shown to have been incorrectly recorded, as the stairs leading  

to the terrace were from outside the flat,  i.e.,  from the common area of the  

apartment  complex  beyond  the  outermost  grill-door  leading  into  the  house  

no.L-32,  Jalvayu  Vihar,  Sector  25,  Noida.  It  was  therefore  submitted,  that  

under  no  circumstances  Dr.  Rajesh  Talwar  or  Dr.  Nupur  Talwar  could  be  

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linked to the murder of Hemraj, since the body of Hemraj was found at a place,  

which had no internal connectivity from within the flat of the Talwars.

Fourthly, as noticed above, since the flat of the Talwars was bolted from the  

outside, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could have taken the  

body of Hemraj to the terrace, even if the inference drawn by the CBI, that the  

murder  of  Hemraj  was committed at  a  place different  from the place from  

where  his  body was found,  is  to  be  accepted as  correct.  It  is  sought  to  be  

suggested, that the accused cannot, in any case, be associated with the murder  

of Hemraj.  And since, both murders were presumably the handiwork of the  

same perpetrator(s),  the accused could not be associated with the murder of  

Aarushi Talwar as well.

Fifthly, substantial  material  was placed before the Court to suggest that  the  

purple colored pillow cover belonging to Krishna Thadarai, was found smeared  

with  the  blood  of  Hemraj.   In  order  to  substantiate  the  instant  contention  

reference  was  made  to  the  seizure  memo pertaining  to  Krishna  Thadarai’s  

pillow cover, and thereupon, the report of the CFSL dated 23.6.2008, as also,  

the report of the CFSL (Bio Division) dated 30.6.2008 depicting, that the blood  

found on the pillow cover was of human origin. It was the vehement contention  

of the learned counsel for the petitioner, that Krishna Thadarai could not have  

been given a clean chit, when the blood of Hemraj was found on his pillow  

cover. It is necessary to record, that a similar submission made before the High  

Court  was  turned  down  by  the  High  Court,  on  the  basis  of  a  letter  dated  

24.3.2011 (even though the same was not a part of the charge papers). It was  

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submitted, that the aforesaid letter could not have been taken into consideration  

while examining the veracity of the inferences drawn by the Magistrate.  In  

order to support the instant contention, it was also vehemently submitted, that  

during the course of investigation, neither the U.P. Police nor the CBI, found  

blood of  Hemraj  on  the  clothes  of  either  Dr.  Rajesh  Talwar  or  Dr.  Nupur  

Talwar. The presence of the blood of Hemraj on the pillow cover of Krishna  

Thadarai and the absence of the blood of Hemraj on the apparel of Dr. Rajesh  

Talwar and Dr. Nupur Talwar, according to learned counsel for the petitioners,  

not  only  exculpates  the  accused  identified  in  the  Magistrate’s  order  dated  

9.2.2011, but also reveals, that the investigation made by the U.P. Police/CBI  

besides being slipshod and sloppy, can also be stated to have been carried on  

without due application of mind.

Sixthly,  in  continuation  of  the  preceding  issue  canvassed  on  behalf  of  the  

petitioners, it was submitted, that the finding recorded by the CBI in its closure  

report,  that  DNA of none of the servants  was found on any of the exhibits  

collected  from  the  scene  of  crime,  was  wholly  fallacious.  The  Magistrate  

having assumed the aforesaid factually incorrect position, exculpated all  the  

servants  of  blame,  in  respect  of  the  twin  murders  of  Aarushi  Talwar  and  

Hemraj.  It  was  submitted,  that  as  a  matter  of  fact,  scientific  tests  shorn  of  

human considerations,  clearly indicate the involvement of  Krishna Thadarai  

with the crime under reference. In this behalf the Court’s attention was also  

drawn to the narco analysis, brain mapping and polygraph tests conducted on  

Krishna Thadarai.

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Seventhly, the investigating agency, it was contended, was guilty of not taking  

the  investigative  process  to  its  logical  conclusion.  In  this  behalf  it  was  

submitted,  that  finger  prints  were  found  on  a  bottle  of  Ballantine  Scotch  

Whiskey, found on the dining table, in the Talwar flat. The accused, according  

to  learned  counsel,  had  requested  the  investigating  agency  to  identify  the  

fingerprints through touch DNA test. The accused had also offered to bear the  

expenses for the same. According to the learned counsel, the identification of  

the  fingerprints  on  the  bottle,  would  have  revealed  the  identity  of  the  

perpetrator(s)  to the murders of Aarushi Talwar and Hemraj.  It  is  therefore  

sought to be canvassed, that the petitioner Dr. Nupur Talwar and her husband  

Dr. Rajesh Talwar, had unfairly been accused of the crime under reference,  

even though there was material available to determine the exact identity of the  

culprit(s) in the matter.

Eighthly,  it  was  submitted,  that  footprints  were  found  in  the  bedroom  of  

Aarushi Talwar, i.e., from the room where her dead body was recovered. These  

footprints according to learned counsel, did not match the footwear impressions  

of  shoes  and  slippers  of  Dr.  Rajesh  Talwar  and  Dr.  Nupur  Talwar.  This  

according to the learned counsel for the petitioners also indicates, that neither  

Dr. Rajesh Talwar nor Dr. Nupur Talwar were involved in the murder of their  

daughter Aarushi Talwar. The murderer, according to learned counsel, was an  

outsider. And it was the responsibility of the CBI to determine the identity of  

such person(s) whose footwear matched the footprints found in the room of the  

Aarushi Talwar. Lack of focused investigation in the instant matter, according  

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to the learned counsel for the petitioners, had resulted in a gross error at the  

hands of the Magistrate, who has unfairly summoned Dr. Rajesh Talwar and  

Dr. Nupur Talwar as the accused, rather than the actual culprit(s).  

Ninthly,  learned counsel  for  the petitioner  also referred to  the post  mortem  

report  of  Aarushi Talwar dated 16.5.2008,  and in conjunction therewith the  

statement of Dr. Sunil Kumar Dhore dated 18.7.2008, the report of the High  

Level Eight Member Expert Body dated 9.9.2008 (of which Dr. Sunil Kumar  

Dhore was a member), and the further statements of Dr. Sunil Kumar Dhore  

dated  3.10.2008,  30.9.2009  and  28.5.2010.  Based  thereon,  learned  counsel  

submitted, that in the post mortem report conducted by Dr. Sunil Kumar Dhore,  

he had expressly recorded NAD (No Abnormality Detected) against the column  

at  serial  no.7,  pertaining  to  the  private  parts  of  Aarushi  Talwar.  It  was  

submitted, that the aforesaid position came to be substantially altered by the  

subsequent oral statements made by Dr. Sunil Kumar Dhore.  It was submitted,  

that  the  different  factual  position  narrated  by  Dr.  Sunil  Kumar  Dhore,  

subsequent to the submission of the post mortem report, cannot be taken into  

consideration. Viewed from the instant perspective, it was also submitted, that  

the investigating agencies utterly failed in carrying out a disciplined and proper  

investigation.   It  was  also  asserted,  that  Dr.  Sunil  Kumar  Dhore  had been  

persuaded to turn hostile to the contents of his own document, i.e.,  the post  

mortem report dated 16.5.2008. Even though originally Dr. Sunil Kumar Dhore  

found, that there was no abnormality detected in the private parts of Aarushi  

Talwar,  after  the  lapse  of  two years  his  supplementary  statements  depict  a  

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number of abnormalities.  It was submitted, that the Magistrate having referred  

to  the  last  of  such statements  dated  25.5.2010,  inferred  therefrom,  that  the  

private  parts  of  Aarushi  Talwar  had been cleaned after  her  murder.  It  was  

submitted,  that  the  absurdity  and improbability  of  the  assumption  could  be  

established from the fact, that the white discharge found from the vagina of  

Aarushi Talwar, was sent for pathological examination, which showed that no  

spermatozoa  was  detected  therein.  The  instant  inference  of  the  Magistrate,  

according to learned counsel, had resulted in grave miscarriage of justice.

Tenthly, it  was contended, that the dimension of the injury on the heads of  

Aarushi Talwar and Hemraj, was stated to match with the dimension of a 5 iron  

golf  club.  It  was  pointed  out,  that  the  5 iron  golf  club recovered  from the  

premises of the Talwars, did not have any traces of blood. It was submitted,  

that the said golf club as a possible weapon of offence, was introduced by the  

second team of the CBI in September/October 2009. The Magistrate, according  

to  learned  counsel,  had  erroneously  recorded  in  the  impugned  order  dated  

9.2.2011, that experts had opined that the injuries in question (on the heads of  

Aarushi Talwar and Hemraj) were possible with the golf club in question. It  

was sought to be highlighted, that no expert had given any such opinion during  

the  entire  investigative  process,  and  as  such,  the  finding  recorded  by  the  

Magistrate was contrary to the record.

Eleventhly,  it  was  asserted,  that  the  Magistrate  ignored  to  take  into  

consideration, the fact that the clothes of Dr. Rajesh Talwar were found only  

with the blood of Aarushi Talwar.  But it was noticed, that there was no blood  

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of  Aarushi  Talwar  on  the  clothes  of  Dr.  Nupur  Talwar.  This  fact  is  also  

erroneous  because  the  blood  of  Aarushi  Talwar  was  actually  found  on the  

clothes of Dr. Nupur Talwar also. According to learned counsel, the discovery  

of blood of Aarushi Talwar on the clothes of her parents was natural. What is  

important, according to learned counsel, is the absence of blood of Hemraj, on  

the clothes of the accused. It  was submitted, that the prosecution had never  

denied, that the blood of Hemraj was not found on the clothes of either Dr.  

Rajesh Talwar or Dr. Nupur Talwar. This factual position, for the same reasons  

as have been indicated at serial no. fourthly above establishes the innocence of  

the accused in the matter.

16. Just as in the case of the reasons depicted in the order of the Magistrate  

(based on the statements recorded during the course of investigation and the  

documents  and  other  materials  placed  before  her),  the  factual  submissions  

advanced at the hands of the learned counsel for the petitioners (noticed in the  

foregoing paragraph), cannot be placed on the pedestal of reliable evidence.  It  

is only when statements are recorded in defence, which are tested by way of  

cross  examination,  and  only  after  documents  and  material  relied  upon  (in  

defence),  are proved in accordance with the law, the same would constitute  

evidence, which can constitute a basis, for determining the factual position in  

the controversy.  It is only on the basis of such acceptable evidence, that final  

conclusions  can  be  drawn.  That  stage  has  not  arisen.   Even  though  the  

demeanor of learned counsel representing the petitioners was emphatic, that no  

other inference beside the one suggested by them was possible, I am of the  

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view, that the stage is not yet right for such emphatic conclusions.  Just as the  

learned counsel for the petitioner had endeavored to find fault with the factual  

inferences depicted in the order dated 9.2.2011 (which constituted the basis of  

issuing  process),  learned  counsel  for  the  CBI  submitted,  that  the  factual  

foundation  raised  by  the  petitioner  (details  whereof  have  been summarized  

above) were based on surmises and conjectures.  Even though I have recorded a  

summary of the factual basis, on which the learned counsel for the petitioner  

have  based  their  contentions,  I  am  intentionally  not  recording  the  reasons  

whereby their veracity was assailed.  That then, would have required me to  

further determine, which of the alternative positions were correct.  I am of the  

view,  that  such  an  assessment  at  the  present  stage  would  be  wholly  

inappropriate.  My dealing with the factual contours of the present controversy,  

at a juncture well before evidence has been recorded by the trial court, would  

have adverse consequences against one or the other party.  Even though, while  

dealing with issues as in the instant case,  High Courts  and this  Court  have  

repeatedly observed in their  orders,  that the trial  court  would determine the  

controversy  uninfluenced  by  observations  made.   Yet,  inferences  and  

conclusions  drawn  by  superior  courts,  on  matters  which  are  pending  

adjudication before trial courts (or other subordinate courts) cannot be easily  

brushed aside.   I  shall,  therefore,  endeavor  not  to  pre-maturely  record  any  

inferences which could/would prejudice one or the other side.

17. Having  recorded  the  aforesaid  observations,  in  respect  of  the  

submissions advanced at the hands of the learned counsel for the petitioner, I  

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shall  now  proceed  to  determine  the  validity  of  the  order  passed  by  the  

Magistrate on 9.2.2011, as also, the legitimacy of the defences raised by the  

learned counsel for the petitioner.  Although it would seem, that there would be  

a common answer to the proposition canvassed, I am of the view, after having  

heard learned counsel for the rival parties, that the issue canvassed ought to  

compartmentalized under two heads.  Firstly, I shall examine the validity of the  

order  dated  9.2.2011,  and  thereafter,  I  will  deal  with  the  substance  of  the  

defences raised at the hands of the petitioner.  That is how the matter is being  

dealt with in the following paragraphs.

18. The basis and parameters of issuing process, have been provided   for in  

Section 204 of the Code of Criminal Procedure.  Section 204 aforementioned is  

extracted hereunder :

“204. Issue of process –  

(1) If in the opinion of a Magistrate taking cognizance of an offence  there is sufficient ground for proceeding, and the case appears to  be –

(a) a  summons-case,  he  shall  issue  his  summons  for   the  attendance of the accused, or       

(b) a warrant-case, he may issue a warrant, or, if he thinks  fit,  a  summons,  for  causing  the accused to be brought or to  appear  at  a  certain  time  before such Magistrate of (if he  has no jurisdiction himself) some  other Magistrate  having  jurisdiction.

       (2) No summons or warrant shall be issued against the accused under  

sub-section (1) until a list of the prosecution witnesses has been  filed.

(3) In  a  proceeding  instituted  upon  a  complaint  made  in  writing,  every summons or warrant issued under sub-section (1) shall be  accompanied by a copy of such complaint.

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(4) When by any law for the time being in force any process-fees or  other fees are payable, no process shall be issued until the fees  are paid and, if such fees are not paid within a reasonable time,  the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of  section 87.  

The criterion which needs to be kept in mind by a Magistrate issuing process,  

have been repeatedly delineated by this Court.  I shall therefore, first examine  

the declared position of law on the subject.  Reference in this behalf may be  

made to the decision rendered by this  Court  in Cahndra Deo  vs.   Prokash  

Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was  

observed as under :

“(8) Coming to the second ground, we have no hesitation is holding  that the test propounded by the learned single judge of the High  Court is wholly wrong.  For determining the question whether  any process is to be issued or not, what the Magistrate has to be  satisfied is whether there is  “sufficient ground for  proceeding”  and  not  whether  there  is  sufficient  ground  for  conviction.  Whether the evidence is adequate for supporting the conviction  can be determined only at the trial and not at the stage of enquiry.  A number of decisions were cited at the bar in which the question  of  the  scope  of  the  enquiry  under  Section  202  has  been  considered.   Amongst  those  decisions  are  :  Parmanand  Brahmachari  v.  Emperor, AIR 1930 Pat 20; Radha Kishun Sao  v.  S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu  v.  State of  Bihar,  AIR 1952 Pat 125; Emperor  v.   J.A. Finan, AIR 1931  Bom 524 and Baidya Nath Singh  v.  Muspratt, ILR 14 Cal 141.  In all these cases, it has been held that the object of the provisions  of Section 202 is to enable the Magistrate to form an opinion as  to whether process should be issued or not and to remove from  his  mind  any hesitation  that  he  may  have  felt  upon the  mere  perusal  of  the  complaint  and  the  consideration  of  the  complainant’s evidence on oath.  The courts have also pointed  out in these cases that what the Magistrate has to see is whether  there is evidence in support of the allegations of the complainant  and not whether the evidence is sufficient to warrant a conviction.  The learned Judges in some of these cases have been at pains to  observe that an enquiry under Section 202 is not to be likened to  

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a trial which can only take place after process is issued, and that  there can be only one trial.  No doubt, as stated in sub-section (1)  of Section 202 itself, the object of the enquiry is to ascertain the  truth or falsehood of the complaint, but the Magistrate making the  enquiry has to do this only with reference to the intrinsic quality  of the statements made before him at the enquiry which would  naturally mean the complaint itself, the statement on oath made  by  the  complainant  and  the  statements  made  before  him  by  persons examined at the instance of the complainant.”      

(emphasis is mine)

The same issue was examined by this Court in M/s. India Carat Pvt. Ltd.  vs.   

State of Karnataka and Anr., (1989) 2 SCC 132, wherein this Court held as  

under :

“(16) The position is, therefore, now well settled that upon receipt of a  police report under Section 173(2) a Magistrate is entitled to take  cognizance of an offence under Section 190(1)(b)  of the Code  even if the police report is to the effect that no case is made out  against the accused.  The Magistrate can take into account the  statements of  the witnesses examined by the police during the  investigation and take cognizance of the offence complained of  and order the issue of process to the accused.  Section 190(1)(b)  does not lay down that a Magistrate can take cognizance of an  offence only if the investigating officer gives an opinion that the  investigation  has  made  out  a  case  against  the  accused.   The  Magistrate  can  ignore  the  conclusion  arrived  at  by  the  investigating  officer  and  independently  apply  his  mind  to  the  facts emerging from the investigation and take cognizance of the  case,  if  he  thinks  fit,  in  exercise  of  his  powers  under  Section  190(1)(b)  and direct  the issue of process to the accused.   The  Magistrate  is  not  bound  in  such  a  situation  to  follow  the  procedure laid down in Sections 200 and 202 of the Code for  taking cognizance of a case under Section 190(1)(a) though it is  open to him to act under Section 200 or Section 202 also.  The  High  Court  was,  therefore,  wrong in  taking the  view that  the  Second  Additional  Chief  Metropolitan  Magistrate  was  not  entitled  to  direct  the  registration  of  a  case  against  the  second  respondent and order the issue of summons to him.

 (17) The fact that in this case the investigation had not originated from  

a  complaint  preferred  to  the  Magistrate  but  had  been  made  pursuant  to  a  report  given  to  the  police  would  not  alter  the  situation in any manner.  Even if the appellant had preferred a  

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compliant before the learned Magistrate and the Magistrate had  ordered  investigation  under  Section  156(3),  the  police  would  have had to submit a report under Section 173(2).  It has been  held in Tula Ram  v.  Kishore Singh, (1977) 4 SCC 459, that if  the police, after making an investigation, send a report that no  case  was  made  out  against  the  accused,  the  Magistrate  could  ignore the conclusion drawn by the police and take cognizance of  a  case  under  Section  190(1)(b)  and  issue  process  or  in  the  alternative he can take cognizance of the original complaint and  examine the complainant and his witnesses and thereafter issue  process to the accused, if he is of opinion that the case should be  proceeded with.”

(emphasis is mine)

The same issue was examined by this  Court  in Jagdish Ram  vs.   State of  

Rajasthan and Anr., (2004) 4 SCC 432, wherein this Court held as under:

“(10) The contention urged is that though the trial court was directed to  consider the entire material on record including the final report  before deciding whether the process should be issued against the  appellant  or  not,  yet  the  entire  material  was  not  considered.  From perusal of order passed by the Magistrate it cannot be said  that  the entire material  was not taken into consideration.   The  order  passed  by  the  Magistrate  taking  cognizance  is  a  well- written order.  The order not only refers to the witnesses recorded  by the Magistrate under Sections 200 and 202 of the Code but  also sets  out  with clarity  the  principles  required to  be  kept  in  mind at the stage of taking cognizance and reaching a prima facie  view.  At this stage, the Magistrate had only to decide whether  sufficient  ground  exists  or  not  for  further  proceeding  in  the  matter.  It is well settled that notwithstanding the opinion of the  police,  a  Magistrate  is  empowered  to  take  cognizance  if  the  material on record makes out a case for the said purpose.  The  investigation is the exclusive domain of the police.  The taking of  cognizance  of  the  offence  is  an  area  exclusively  within  the  domain of a Magistrate.  At this stage, the Magistrate has to be  satisfied  whether  there  is  sufficient  ground  for  proceeding  for  proceeding  and  not  whether  there  is  sufficient  ground  for  conviction.  Whether the evidence is adequate for supporting the  conviction, can be determined only at the trial and not at the stage  of inquiry.  At the stage of issuing the process to the accused, the  Magistrate  is  not  required  to  record  reasons.   (Dy.  Chief  Controller of Imports & Exports  v.  Roshanlal Agarwal, (2003) 4  SCC 139).”  

(emphasis is mine)

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All along having made a reference to the words “there is sufficient ground to  

proceed” it has been held by this Court, that for the purpose of issuing process,  

all that the concerned Court has to determine is, whether the material placed  

before it “is sufficient for proceeding against the accused”.  The observations  

recorded  by  this  Court  extracted  above,  further  enunciate,  that  the  term  

“sufficient to proceed” is  different and distinct  from the term “sufficient to  

prove  and  established  guilt”.   Having  taken  into  consideration  the  factual  

position  based  on  the  statements  recorded  under  Section  161  of  Code  of  

Criminal Procedure (as also, under Section 164 thereof),  and the documents  

appended to the charge sheet, as also, the other materials available on the file; I  

have no doubt whatsoever in my mind, that the Magistrate was fully justified in  

issuing process, since the aforesaid statements, documents and materials, were  

most certainly sufficient to proceed against the accused.  Therefore, the order  

issuing process under Section 204 passed by the Magistrate on 9.2.2011 cannot  

be faulted on the ground, that it had been passed in violation of the provisions  

of Code of Criminal Procedure, or in violation of the declared position of law  

on the subject.  Despite my aforesaid conclusion, I reiterate, that the material  

taken into consideration by the Magistrate will have to be substituted by cogent  

evidence recorded during the trial; before any inferences, assumptions, views  

and deductions drawn by the Magistrate, can be made the basis for implicating  

the  accused.   As  the  matter  proceeds  to  the  next  stage,  all  the  earlier  

conclusions will stand effaced, and will have to be redrawn, in accordance with  

law.

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19. Rolled  along  with  the  contention  in  hand,  it  was  the  submission  of  

learned counsel representing the petitioner, that if the defences raised by the  

petitioner are taken into consideration, the entire case set up by the prosecution  

would fall.  I shall now advert to the defences raised on behalf of the petitioner.   

All  the  defences  raised  on  behalf  of  the  petitioner  have  already  been  

summarized above.  Based on the said defences it was sought to be canvassed,  

that  the Magistrate (while passing the  order  dated 9.2.2011) had taken into  

consideration some facts incorrectly (while the factual position was otherwise),  

and certain vital  facts  were  overlooked.   On the  subject  under  reference,  it  

would first be appropriate to examine the settled legal position.  In this behalf  

reference may be made to the decision rendered by this Court in Cahndra Deo  

vs.  Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430,  

wherein it was observed as under :

“(7) Taking  the  first  ground,  it  seems  to  us  clear  from  the  entire  scheme of Ch. XVI of the Code of Criminal Procedure that an  accused person does not come into the picture at all till process is  issued.   This  does  not  mean  that  he  is  precluded  from being  present when an enquiry is held by a Magistrate.  He may remain  present either in person or through a counsel or agent with a view  to be informed of what is going on.  But since the very question  for consideration being whether he should be called upon to face  an accusation, he has no right to take part in the proceedings nor  has the Magistrate any jurisdiction to permit  him to do so.  It  would follow from this, therefore, that it would not be open to the  Magistrate to put any question to witnesses at the instance of the  person named as accused but against whom process has not been  issued; nor can he examine any witnesses at the instance of such  a person.  Of course, the Magistrate himself is free to put such  questions  to  the  witnesses  produced  before  him  by  the  complainant as he may think proper in the interests of justice.  But beyond that, he cannot go.  It was, however, contended by  Mr.  Sethi  for  respondent  No.1  that  the  very  object  of  the  provisions of Ch. XVI of the Code of Criminal Procedure is to  

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prevent an accused person from being harassed by a frivolous  complaint and, therefore, power is given to a Magistrate before  whom complaint is made to postpone the issue of summons to the  accused person pending the result of an enquiry made either by  himself  or  by  a  Magistrate  subordinate  to  him.   A  privilege  conferred  by  these  provisions,  can  according  to  Mr.  Sethi,  be  waived  by  the  accused  person  and  he  can  take  part  in  the  proceedings.  No doubt, one of the objects behind the provisions  of Section 202, Cr. P.C.  is to enable the Magistrate to scrutinize  carefully the allegations made in the complaint with a view to  prevent  a  person  named therein  as  accused  from being  called  upon to face an obviously frivolous complaint.  But there is also  another object  behind this  provision and it  is to find out what  material there is to support the allegations made in the complaint.  It is the bounden duty of the Magistrate while making an enquiry  to elicit all facts not merely with a view to protect the interests of  an absent accused person, but als with a view to bring to book a  person  or  persons  against  whom  grave  allegations  are  made.  Whether  the  complaint  is  frivolous  or  not  has,  at  that  stage,  necessarily to be determined on the basis of the material placed  before him by the complainant.  Whatever defence the accused  may  have can only be enquired into at  the trial.   An enquiry  under Section 202 can in no sense be characterized as a trial for  the simple reason that in law there can be but one trial for an  offence.   Permitting an accused person to intervene during the  enquiry  would  frustrate  its  very  object  and  that  is  why  the  legislature has made no specific provision permitting an accused  person to take part in an enquiry.  It is true that there is no direct  evidence  in  th  case  before  us  that  the  two persons  who were  examined as court witnesses were so examined at the instance of  respondent No.1 but from the fact that they were persons who  were alleged to have been the associates of respondent No.1 in  the first information report lodged by Panchanan Roy and who  were alleged to have been arrested on the spot by some of the  local  people,  they  would  not  have  been  summoned  by  the  Magistrate  unless  suggestion  to  that  effect  had  been made  by  counsel  appearing  for  respondent  No.1.   This  inference  is  irresistible and we hold that on this ground, the enquiry made by  the  enquiring  Magistrate  is  vitiated.   In  this  connection,  the  observations  of  this  court  in  Vadilal  Panchal   v.   Dattatraya  Dulaji, (1961) 1 SCR 1 at p.9 : (AIR 1960 SC 1113 at p. 1116)  may usefully be quoted :

“The enquiry is for the purpose of ascertaining the truth or  falsehood  of  the  complaint;  that  is,  for  ascertaining  whether there is evidence in support of the complaint so as  

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to  justify  the  issue  of  process  and  commencement  of  proceedings  against  the  person concerned.   The  section  does not say that a regular trial for adjudging the guilt or  otherwise  of  the  person complained against  should  take  place at that stage, for the person complained against can  be  legally  called  upon  to  answer  the  accusation  made  against him only when a process has issued and he is put  on trial.”                                                           (emphasis is mine)      

 Recently an examination of the defence(s) of an accused, at the stage of issuing  

process, came to be examined by this Court in CREF Finance Ltd.  vs.  Shree  

Shanthi Homes (P) Ltd. and Anr., (2005) 7 SCC 467, wherein this Court held  

as under :

“10. In the instant case, the appellant had filed a detailed complaint  before the Magistrate.  The record shows that the Magistrate took  cognizance and fixed the matter for recording of the statement of  the complainant on 1-6-2000.  Even if we assume, though that is  not the case, that the words “cognizance taken” were not to be  found in the order recorded by him on that date, in our view that  would make no difference.  Cognizance is taken of the offence  and not of the offender and, therefore, once the court on perusal  of  the  complaint  is  satisfied  that  the  complaint  discloses  the  commission of  an offence and there  is  no reason to  reject  the  complaint at that stage, and proceeds further in the matter, it must  be held to have taken cognizance of the offence.  One should not  confuse  taking  of  cognizance  with  issuance  of  process.  Cognizance  is  taken  at  the  initial  stage  when  the  Magistrate  peruses  the  complaint  with  a  view  to  ascertain  whether  the  commission of any offence is disclosed.  The issuance of process  is  at  a  later  stage  when  after  considering  the  material  placed  before  it,  the  court  decides  to  proceed  against  the  offenders  against whom a prima facie case is made out.  It is possible that a  complaint  may  be  filed  against  several  persons,  but  the  Magistrate may choose to issue process only against some of the  accused.   It  may  also  be  that  after  taking  cognizance  and  examining the complainant on oath, the court may come to the  conclusion that no case is made out for issuance of process and it  may reject the complaint.  It may also be that having considered  the complaint, the court may consider it appropriate to send the  complaint to the police for investigation under Section 156(3) of  the Code of Criminal Procedure.  We can conceive of many other  

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situations in which a Magistrate may not take cognizance at all,  for instance, a case where he finds that the complaint is not made  by the person who in law can lodge the complaint, or that the  complaint is not entertainable by that court, or that cognizance of  the  offence  alleged  to  have  been  committed  cannot  be  taken  without the sanction of the competent authority, etc.  These are  cases  where the Magistrate  will  refuse to  take cognizance and  return the complaint to the complainant.  But if he does not do so  and  proceeds  to  examine  the  complainant  and  such  other  evidence  as  the  complainant  may  produce  before  him then,  it  should  be  held  to  have  taken  cognizance  of  the  offence  and  proceeded with the inquiry.  We are, therefore, of the opinion that  in the facts and circumstances of this case, the High Court erred  in holding that the Magistrate had not taken cognizance, and that  being  a condition precedent, issuance of process was illegal.

11. Counsel for  the respondents submitted that  cognizance even if  taken  was  improperly  taken  because  the  Magistrate  had  not  applied his mind to the facts of the case.  According to him, there  was no case made out for issuance of process.  He submitted that  the debtor was the Company itself and Respondent 2 had issued  the  cheques  on behalf  of  the Company.   He had subsequently  stopped payment of those cheques.  He, therefore, submitted that  the liability not being the personal liability of Respondent 2, he  could  not  be  prosecuted,  and  the  Magistrate  had  erroneously  issued process against him.  We find no merit in the submission.  At this stage, we do not wish to express any considered opinion  on the argument advanced by him, but we are satisfied that so far  as  taking  of  cognizance  is  concerned,  in  the  facts  and  circumstances  of  this  case,  it  has  been  taken  properly  after  application of mind.  The Magistrate issued process only after  considering the material placed before him.  We, therefore, find  that the judgment and order of the High Court is unsustainable  and must be set aside.  This appeal is accordingly allowed and the  impugned judgment and order of the High Court is set aside.  The  trial  court  will  now proceed with the complaint  in accordance  with law from the stage at which the respondents took the matter  to the High Court.”     

                                                   (emphasis is mine)

A perusal of the legal position expressed by this Court reveals the unambiguous  

legal position, that possible defence(s) of an accused need not be taken into  

consideration at the time of issuing process.  There may be a situation, wherein,  

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the defence(s) raised by an accused is/are factually unassailable, and the same  

are also not controvertable, it would, demolish the foundation of the case raised  

by the prosecution.  The Magistrate may examine such a defence even at the  

stage of taking cognizance and/or issuing process.  But then, this is not the  

position in the present controversy.  The defences raised by the learned counsel  

for  the  petitioner  are  factual  in  nature.   As  against  the  aforesaid  defences,  

learned counsel for the CBI has made detailed submissions.  In fact, it was the  

submission of the learned counsel for the CBI, that the defences raised by the  

petitioner were merely conjectural.  Each of the defences was contested and  

controverted, on the basis of material on the file. In this case it cannot be said  

that  the  defences  raised  were  unassailable  and also not  controvertable.   As  

already noticed above, I do not wish to engage myself in the instant disputed  

factual controversy, based on assertions and denials.  The factual position is yet  

to be established on the basis of acceptable evidence.  All that needs to be  

observed at the present juncture is, that it was not necessary for the Magistrate  

to take into consideration all possible defences, which could have been raised  

by the petitioner, at the stage of issuing process.  Defences as are suggested by  

the learned counsel for the petitioner, which were based on factual inferences,  

certainly ought not to have been taken into consideration.  Thus viewed, I find  

no merit in the instant contention advanced at the hands of the learned counsel  

for the petitioner.  The instant determination of mine, should not be treated as a  

rejection of the defences raised on behalf of the petitioner.  The defences raised  

on behalf of the accused will have to be substantiated through cogent evidence  

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and thereupon, the same will be examined on merits, for the exculpation of the  

accused, if so made out.

20. The submissions dealt with hereinabove constituted the primary basis of  

challenge, on behalf of the petitioner.  Yet, just before the conclusion of the  

hearing of the matter, learned counsel representing the petitioner stated, that the  

petitioner would be satisfied even if, keeping in mind the defences raised on  

behalf of the petitioner, further investigation could be ordered.  This according  

to learned counsel will ensure, that vital aspects of the controversy which had  

remained unraveled, will be brought out with the possibility of identifying the  

real culprits.  This according to the learned counsel for the petitioner would  

meet the ends of justice.

21. The contention advanced at  the  hands of  the  learned counsel for  the  

petitioner, as has been noticed in the foregoing paragraph, seems to be a last  

ditch effort, to savage a lost situation.  The plea for further investigation, was  

raised by Dr. Rajesh Talwar in his protest petition dated 25.1.2011.  The prayer  

for  further  investigation,  was declined by the Magistrate in  her order  dated  

9.2.2011.  Dr. Rajesh Talwar who had raised the aforesaid prayer, did not assail  

the  aforestated  determination.   The  plea  for  further  investigation  therefore  

attained finality.   Dr.  Nupur  Talwar,  the  petitioner  herein,  did  not  make  a  

prayer  for  further  investigation,  when  she  assailed  the  order  passed  by  the  

Magistrate  dated  9.2.2011  before  the  High  Court  (vide  Criminal  Revision  

Petition no.1127 of 2011).  Having not pressed the aforesaid prayer before the  

High Court, it is not open to the petitioner Dr. Nupur Talwar, to raise the same  

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before  this  Court,  in  a  proceeding which emerges  out  of  the  determination  

rendered by the High Court (in Criminal Revision Petition no.1127 of 2011).  I,  

therefore,  find  no  merit  in  the  instant  contention  advanced  by  the  learned  

counsel for the petitioner.   

22. I  shall  now embark  upon  the  last  aspect  of  the  matter,  namely,  the  

propriety of the petitioner in filing the instant Review Petition.  The parameters  

within which an order taking cognizance and/or an order issuing process needs  

to  be  passed,  have already been dealt  with above.   It  is  apparent  from my  

determination, that the matter of taking cognizance and/or issuance of notice, is  

based  on  the  satisfaction  of  the  Magistrate.   In  the  conclusions  recorded  

hereinabove, while making a reference to past precedent, I have concluded, that  

it is not essential for the concerned Magistrate to record reasons or to pass a  

speaking order demonstrating the basis of the satisfaction, leading to issuance  

of process.  Despite the same, the Magistrate while issuing process vide order  

dated 9.2.2011, had passed a detailed reasoned order.  The order brings out the  

basis of the Magistrate’s satisfaction.  The aforesaid order dated 9.2.2011 came  

to be assailed by the petitioner before the High Court of judicature at Allahabad  

through Criminal Revision Petition no.1127 of 2011.  The High Court having  

concluded, that the satisfaction of the Magistrate was well found, dismissed the  

Revision Petition vide an order dated 18.3.2011.  The High Court expressly  

affirmed that the order dated 9.2.2011 had been passed on the basis of record  

available  before  the  High  Court,  and  on  the  basis  of  the  Magistrate’s  

satisfaction, that process deserved to be issued.  The petitioner approached this  

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Court by filing Special Leave Petition (Criminal) no.2982 of 2011 (renumbered  

as Criminal Appeal no. 16 of 2011).  While dismissing the aforesaid Criminal  

Appeal  vide  order  dated  6.1.2012  this  Court  in  paragraph  11  observed  as  

under :  

“…Obviously at this stage we cannot weigh evidence.  Looking into the  order of Magistrate, we find that he applied his mind in coming to the  conclusion relating to taking of cognizance.  The Magistrate has taken  note of the rejection report and gave his prima facie observation on the  controversy upon a consideration of the materials that surfaced in the  case. …”

                 (emphasis is mine)

Thereafter,  the  matter  was  disposed  of,  by  this  Court,  by  recording  the  

following observations :

“24. In  the  above  state  of  affairs,  now the  question  is  what  is  the  jurisdiction and specially the duty of this Court in such a situation  under Article 136?

25. We  feel  constrained  to  observe  that  at  this  stage,  this  Court  should  exercise  utmost  restrain  and  caution  before  interfering  with an order of taking cognizance by the Magistrate, otherwise  the holding of a trial will be stalled.  The superior Courts should  maintain this restrain to uphold the rule of law and sustain the  faith of the common man in the administration of justice.

26. Reference in this connection may be made to a three Judge Bench  decision of this Court in the case of M/s India Carat Private Ltd.  vs.  State of Karnataka & Anr., (1989) 2 SCC 132.  Explaining  the  relevant  principles  in  paragraphs  16,  Justice  Natarajan,  speaking  for  the  unanimous  three  Judge  Bench,  explained the  position so succinctly that we could rather quote the observation  as under  :-

“The position is, therefore, now well settled that upon receipt  of a police report under Section 173(2) a Magistrate is entitled  to take cognizance of an offence under Section 190(1)(b) of the  Code even if the police report is to the effect that no case is  made out against  the accused.  The Magistrate  can take into  account the statements of the witnesses examined by the police  during  the  investigation  and  take  cognizance  of  the  offence  complained  of  an  order  the  issue  of  process  to  the  accused.  Section 190(1)(b) doest not lay down that a Magistrate can take  

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cognizance of an offence only if the investigating officer gives  an opinion that the investigation has made out a case against  the accused.  The Magistrate can ignore the conclusion arrived  at  by  the  investigating  officer;  and  independently  apply  his  mind  to  the  facts  emerging  from the  investigation  and  take  cognizance of the case, if he thinks fit, in exercise of his powers  under Section 190(1)(b) and direct the issue of process to the  accused…”

27. These well settled principles still hold good.  Considering these  propositions  of  law,  we  are  of  the  view  that  we  should  not  interfere  with  the  concurrent  order  of  the  Magistrate  which  is  affirmed by the High Court.

28. We are deliberately not going into various factual aspects of the  case  which have been raised before  us  so that  in  the  trial  the  accused persons may not be prejudiced.  We, therefore, dismiss  this appeal with the observation that in the trial which the accused  persons  will  face,  they  should  not  be  prejudiced  by  any  observation made by us in this order or in the order of the High  Court  or  those  made  in  the  Magistrate’s  order  while  taking  cognizance.  The accused must be given all opportunities in the  trial they are to face.  We, however, observe that the trial should  expeditiously held.

29. The appeal is accordingly disposed of.”        (emphasis is mine)  

Unfortunately, while addressing submissions during the course of hearing no  

reference whatsoever was made either to the order passed by the High Court,  

and more significantly, to the order passed by this Court (dated 6.1.2012) of  

which review has been sought.  No error whatsoever was pointed out in the  

order passed by this Court on 6.1.2012.  Learned counsel for the CBI during  

the course of hearing, was therefore fully justified in repeatedly canvassing,  

that through the instant review petition, the petitioner was not finding fault with  

the order dated 6.1.2012 (of which review has been sought), but with the order  

passed by the Magistrate dated 9.2.2011.  That, I may say, is correct.  The order  

of  this  Court  did  not  fall  within  the  realm  of  the  petitioner’s  rational  

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acceptability.   This,  in  my  view,  most  certainly  amounts  to  misuse  of  

jurisdiction of this Court.  It was sufficient for this Court, while determining a  

challenge to an order taking cognizance and/or issuing process to affirm, that  

the Magistrate’s order was based on satisfaction.  But that has resulted in the  

petitioner’s lamentation.  This Court has been required to pass a comprehensive  

order after hearing detailed submissions for days at end, just for the petitioner’s  

satisfaction.  I have noticed, that every single order passed by the Magistrate,   

having any repercussion, is being assailed right up to this Court.  Of course, the  

right to avail a remedy under law, is the right of every citizen. But such a right,  

cannot extend to  misuse of  jurisdiction.   The petitioner’s  attitude expresses  

discomfort at every order not acceding to her point of view.  Even at the earlier  

juncture,  full  dress  arguments,  as  have  been  addressed  now,  had  been  

painstakingly advanced.  Determination on the merits of the main controversy,  

while  dealing  with  the  stage  of  cognizance  and/or  issuance  of  process,  if  

deliberated  upon,  is  bound  to  prejudice  one  or  the  other  party.   It  needed  

extreme restraint not to deal with the individual factual aspects canvassed on  

behalf of the petitioner, as have been noticed above, even though each one of  

them was sought to be repudiated on behalf of the CBI.  I am of the considered  

view, that the very filing of the instant Review Petition was wholly uncalled  

for, specially when this Court emphatically pointed out its satisfaction in its  

earlier order dated 6.1.2012 (which is the subject matter of review) not only in  

paragraph 11 thereof, but also, for not accepting the prayers made on behalf of  

the  petitioner  in  the  subsequent  paragraphs  which  have  been  extracted  

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hereinabove.  As of now, I would only seriously caution the petitioner from  

such behaviour in future.  After all, frivolous litigation takes up a large chunk  

of  precious  court  time.   While  the  state  of  mind  of  the  accused  can  be  

understood, I shall conclude by suggesting, that the accused should henceforth  

abide by the advice tendered to her, by learned counsel representing her.  For,  

any uncalled or frivolous proceedings initiated by the petitioner hereinafter,  

may evoke exemplary costs.

23. As a matter of caution I direct the Magistrate, not to be influenced by  

any observations made by the High Court or by this Court, while dealing with  

the  order  dated  9.2.2011,  specially  insofar  as  the  factual  parameters  are  

concerned.

24. Dismissed.

 …………………………….J.

   (Jagdish Singh Khehar) New Delhi; June 7, 2012.

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

REVIEW     PETITION     (CRL.)     NO.     85     OF     2012   IN  

CRIMINAL     APPEAL     NO.68     OF     2012      

Nupur Talwar                                          … Petitioner

Versus

Central Bureau of Investigation & Anr.     … Respondents

O     R     D     E     R   

A.     K.     PATNAIK,     J.   

I have carefully read the order of my learned brother  

Khehar, J. and I agree with his conclusion that this Review  

Petition will have to be dismissed, but I would like to give  

my own reasons for this conclusion.

2. As the facts have been dealt with in detail in the order  

of my learned brother, I have not felt the necessity of  

reiterating those facts in my order, except stating the  

following few facts:  The Magistrate by a detailed order dated  

09.02.2011 rejected the closure report submitted by the CBI  

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and took cognizance under Section 190 Cr.P.C. and issued  

process under Section 204, Cr.P.C. to the petitioner and her  

husband, Dr. Rajesh Talwar, for the offence of murder of  

their daughter Aarushi Talwar and their domestic servant  

Hemraj on 16.05.2008 under Section 302/34 IPC and for  

the offence of causing disappearance of evidence of offence  

under Section 201/34 IPC.  The order dated 09.02.2011 of  

the Magistrate was challenged by the petitioner in Criminal  

Revision No.1127 of 2009 before the High Court of  

Judicature at Allahabad, but the High Court dismissed the  

Criminal Revision by order dated 18.03.2011.  The order of  

the High Court was thereafter challenged by the petitioner  

in S.L.P. (Crl.) No.2982 of 2011 in which leave was granted  

by this Court and the S.L.P. was converted to Criminal  

Appeal No.16 of 2011.  Ultimately, however, by order dated  

06.01.2011, this Court dismissed the Criminal Appeal and  

the petitioner has filed the present Review Petition against  

the order dismissing the Criminal Appeal.

3. The petitioner is aggrieved by the order dated  

09.02.2011 of the Magistrate taking cognizance under  

Section under Section 190 Cr. P.C. and issuing  

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process under Section 204 Cr.P.C. against her and  

her husband.  As admittedly there are offences  

committed in respect of the two deceased persons,  

Aarushi and Hemraj, there cannot be any infirmity in  

the order of the Magistrate taking cognizance.  Hence,  

the only question that we are called upon to decide is  

whether the Magistrate was justified in issuing the  

process to the petitioner and her husband by her  

order dated 09.02.2011.  

4. Sub-section (1) of Section 204 Cr.P.C. under which  

the Magistrate issued the process against the  

petitioner is extracted hereinbelow:  

“Section 204(1). If in the opinion of a  Magistrate taking cognizance of an offence  there is sufficient ground for proceeding, and  the case appears to be—

(a) a summons-case, he shall issue his  summons for the attendance of the  accused, or

(b) a warrant-case, he may issue a  warrant, or, if he thinks fit, a  summons, for causing the accused to  be brought or to appear at a certain  time before such Magistrate or (if he  has no jurisdiction himself) some other  Magistrate having jurisdiction.”

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It is clear from sub-section (1) of Section 204, Cr.P.C. that  

the Magistrate taking cognizance of an offence shall issue  

the process against a person if in his opinion there is  

sufficient ground for proceeding against him.   

5. The standard of scrutiny of the evidence which the  

Magistrate has to adopt for deciding whether or not to issue  

process under Section 204 Cr.P.C. in a case exclusively  

triable by the Sessions Court has been laid down by this  

Court  in Kewal Krishan v. Suraj Bhan & Anr. [1980 (Supp)  

SCC 499] this Court thus:

“At the stage of Sections 203 and 204,  Criminal Procedure Code in a case exclusively  triable by the Court of Session, all that the  Magistrate has to do is to see whether on a  cursory perusal of the complaint and the  evidence recorded during the preliminary  inquiry under Sections 200 and 202, Criminal  Procedure Code, there is prima facie evidence  in support of the charge levelled against the  accused. All that he has to see is whether or  not there is “sufficient ground for proceeding”  against the accused. At this stage, the  Magistrate is not to weigh the evidence  meticulously as if he were the trial court. The  standard to be adopted by the Magistrate in  scrutinising the evidence is not the same as  the one which is to be kept in view at the stage  of framing charges. This Court has held in  Ramesh Singh case that even at the stage of  framing charges the truth, veracity and effect  

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of the evidence which the complainant  produces or proposes to adduce at the trial, is  not to be meticulously judged. The standard of  proof and judgment, which is to be applied  finally before finding the accused guilty or  otherwise, is not exactly to be applied at the  stage of framing charges. A fortiori, at the  stage of Sections 202/204, if there is prima  facie evidence in support of the allegations in  the complaint relating to a case exclusively  triable by the Court of Session, that will be a  sufficient ground for issuing process to the  accused and committing them for trial to the  Court of Session.”

Thus, in a case exclusively triable by the Court of Session,  

all that the Magistrate has to do at the stage of Section 204  

Cr.P.C. is to see whether on a perusal of the evidence there  

is “sufficient ground for proceeding”  against the accused  

and at this stage, the Magistrate is not required to weigh the  

evidence meticulously as if he was the trial court nor is he  

required to scrutinise the evidence by the same standard by  

which the Sessions Court scrutinises the evidence to decide  

whether to frame or not to frame charges under Section  

227/228, Cr.P.C.  

6. Keeping in mind these distinctions between the  

standards of scrutiny at the stages of issue of process,  

framing of charges and the trial, the contentions of the  

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parties can be now considered.  Learned senior counsel  

for the petitioner, Mr. Harish Salve, produced before us  

the materials which were collected during the  

investigation and submitted that had the Magistrate  

considered all the relevant materials, she would have  

come to the conclusion that sufficient grounds did not  

exist for proceeding against the petitioner and her  

husband and would have directed further investigation as  

prayed by Dr. Rajesh Talwar, but unfortunately the order  

dated 09.02.2011 does not disclose that the Magistrate  

considered all relevant materials collected during  

investigation.  The relevant materials on which the  

petitioner relies upon have been discussed in the order of  

my learned Brother at length.  Mr. Siddharth Luthra,  

learned senior counsel for the CBI, on the other hand,  

submitted that the entire case diary including all the  

materials (statements recorded under Section 161  

Cr.P.C., the post mortem and scientific reports and  

material objects) collected in the course of investigation  

were placed before the Magistrate and, therefore, the  

argument of Mr. Salve that the Magistrate has not looked  

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into all the materials collected during investigation is  

misconceived.   

7. By writing a long order dated 09.02.2011 and not  

referring to some of the relevant materials on which the  

petitioner relies upon, the Magistrate has exposed herself  

to the criticism of learned counsel for the petitioner that  

she had applied her mind only to the materials referred to  

in her order and not to other relevant materials collected  

in course of investigation.  Sub-section (1) of Section 204,  

Cr.P.C. quoted above itself does not impose a legal  

requirement on the Magistrate to record reasons in  

support of the order to issue a process and in U.P.  

Pollution Control Board v. Mohan Meakins Ltd. & Ors.  

[(2000) 3 SCC 745] and Deputy Chief Controller of Improts  

& Exports v. Roshallal Agarwal & Ors. [(2003) 4 SCC 139]  

this Court has held that the Magistrate is not required to  

record reasons at the stage of issuing the process against  

the accused.  In the absence of any legal requirement in  

Section 204 Cr.P.C. to issue process, it was not legally  

necessary for the Magistrate to have given detailed  

reasons in her order dated 09.02.2011 for issuing  

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process to the petitioner and her husband Dr. Rajesh  

Talwar.   

8.    The fact, however, remains that the Magistrate has  

given detailed reasons in the order dated 09.02.2011  

issuing process and the order dated 09.02.2011 itself  

does not disclose that the Magistrate has considered all  

the relevant materials collected in course of investigation.  

Yet from the mere fact that some of the relevant materials  

on which the petitioner relies on have not been referred  

to in the order dated 09.02.2011, the High Court could  

not have come to the conclusion in the revision filed by  

the petitioner that these relevant materials were not  

considered.  Moreover, this Court has held in Smt.  

Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.  

[(1976) 3 SCC 736] that whether the reasons given by the  

Magistrate issuing process under Section 202 or 204  

Cr.P.C. were good or bad, sufficient or insufficient,  

cannot be examined by the High Court in the revision.  

All that the High Court, however, could do while  

exercising its powers of revision under Section 397/401  

Cr.P.C when the order issuing process under Section 204  

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Cr.P.C. was under challenge was to examine whether  

there were materials before the Magistrate to take a view  

that there was sufficient ground for proceeding against  

the persons to whom the processes have been issued  

under Section 204 Cr.P.C.  In the present case, the High  

Court has not examined whether there were materials  

before the Magistrate to take a view that there was  

sufficient ground for proceeding against the petitioner  

and her husband, but while hearing the Review Petition,  

we have perused the relevant materials collected in the  

course of the investigation and we cannot hold that the  

opinion of the Magistrate that there was sufficient ground  

to proceed against the petitioner and her husband under  

Section 204 Cr.P.C was not a plausible view on the  

materials collected in course of investigation and placed  

before her along with the closure report.  As we have  

seen, sub-section (1) of Section 204 Cr.P.C. provides that  

the Magistrate shall issue the process (summons or  

warrant) if in his opinion there was sufficient ground for  

proceeding and therefore so long as there are materials to  

support the opinion of the Magistrate that there was  

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sufficient ground for proceeding against the persons to  

whom the processes have been issued, the High Court in  

exercise of its revisional power will not interfere with the  

same only because it forms a different opinion on the  

same materials.

9. Mr. Harish Salve, however, cited the judgment of this  

Court in State of Karnataka v. L. Muniswamy & Ors.  

[(1977) 2 SCC 699] in which the High Court in exercise of  

its power under Section 482 Cr.P.C. has quashed the  

proceedings before the Sessions Court on the ground of  

insufficiency of evidence and this Court agreed with the  

view of the High Court and dismissed the appeal.  The  

decision of this Court in the case of State of Karnataka v.  

L. Muniswamy & Ors. (supra) does not relate to a case at  

the stage of issue of process by the Magistrate under  

Section 204 Cr.P.C., and as the facts of that case  

indicate, that was a case where the High Court was of the  

view that the material on which the prosecution proposed  

to rely against the respondents in that case was wholly  

inadequate to sustain the charge against them in the  

case which was pending before the Sessions Court.  As  

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has been clarified by this Court in Kewal Krishan v. Suraj  

Bhan & Anr. (supra), at the stage of Section 204 Cr.P.C.  

the standard to be adopted by the Magistrate in  

scrutinizing the evidence is not the same as the one  

which is to be kept in view at the stage of framing of  

charges by the Sessions Court.

10.   The result of the aforesaid discussion is that the order  

dated 09.02.2011 of the Magistrate taking cognizance  

under Section 190 Cr.P.C. and issuing process against  

the petitioner and her husband under Section 204  

Cr.P.C. could not have been interfered with by the High  

Court in the Revision filed by the petitioner.  Moreover,  

once the order of the Magistrate taking cognizance and  

issuing process against the petitioner and her husband  

was sustained, there is no scope for granting the relief of  

further investigation for the purpose of finding out  

whether someone other than the petitioner and her  

husband had committed the offences in respect of the  

deceased persons Aarushi and/or Hemraj.  As has been  

held by this Court in Randhir     Singh     Rana   v. State     (Delhi    

Administration) [(1997) 1 SCC 361], once a Magistrate  

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takes cognizance of an offence under Section 190 Cr.P.C.,  

he cannot order of his own further investigation in the  

case under Section 156(3) Cr.P.C. but if subsequently the  

Sessions Court passes an order discharging the accused  

persons, further investigation by the police on its own  

would be permissible, which may also result in  

submission of fresh charge-sheet.

11. For these reasons, I agree with my learned brother  

Khehar, J. that this Review Petition has no merit and  

should be dismissed.

….………………….J.                                                                          (A. K.  Patnaik)

New Delhi, June 07, 2012.  

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Correction

In paragraph No.8 of the order pronounced by  Hon'ble Mr. Justice A.K. Patnaik, for Section     397    Cr.P.C. read Section     397/401     Cr.P.C  .

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